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DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS

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I am trying to help my son who is being sued by Capital One for credit card debt. I really wish I had found you sooner but maybe there is still time to do something, I am hoping you can help.

We issued a general denial and I was going to challenge jurisdiction so I was looking for some information for that when I happened upon this website and saw the, DEFENDANT'S ORIGINAL ANSWER, PLEA TO THE JURISDICTION AND SPECIAL EXCEPTIONS provided to Htown, oddly enough 3 years ago today. I read it over and it looked like just what I need except the plea to the jurisdiction is addressing a debt collector and not the original creditor.

The suit was brought by debt collecting lawyers who claim that Capital One is the plaintiff. I am pretty sure that the law firm is actually the plaintiff but I have no proof of that. I asked that they prove they have authorization from Capital One but all we got was a copy of their bond. After I sent the general denial they asked for a continuance to the trial, it was postponed from June 26 to August 22, maybe. I say maybe because we have never received a notification from the court on when the date actually is, I called down there last week and the clerk lady said it was going to be on the 21st but the judge couldn't be there so they were going to change it to the 22nd. It seems to me they would be required to give us a definite date before now, it is not but about a week away now and still no official notification. She said she was going to send the notices out but as of Saturday's (8/12/2017) mail we still had nothing. The Texas rules of Civil Procedure 503.3 says they are supposed to give 45 days notice of trial date, but that doesn't mention a postponed trial, but still it seems like we should get more than a week of official written notice. 

A week or so ago the law firm sent an affidavit from the accounting dept at Capital One as evidence and then Friday they sent a motion for summary judgement with another affidavit from another accounting person. I was going to just send the special exception part of your brief as they are basing their argument on the account stated. I was wondering if you had anything for the jurisdiction if the original creditor is listed as the plaintiff? Is there any way to prove the law firm bought the debt and is collecting for themselves? Any help would be greatly appreciated. I know this is short notice, again I wish I had found you sooner. I was going to challenge jurisdiction based on the fact that there is no valid contract due to the deceptive methods used to coerce my then 18yr old son into contracting with them.

Any help would be greatly appreciated.

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2 hours ago, from Texas said:

The suit was brought by debt collecting lawyers who claim that Capital One is the plaintiff. I am pretty sure that the law firm is actually the plaintiff but I have no proof of that.

If Cap1 hired them to represent them then they are NOT the Plaintiff Cap1 is.  Cap1 is an aggressive original creditor and typically hires law firms equally aggressive in representing their interests.

The lawyers can also be debt collectors but not the Plaintiff in your case.

2 hours ago, from Texas said:

I asked that they prove they have authorization from Capital One but all we got was a copy of their bond.

That information is protected by attorney client privilege and they are not required to give that to you.  

2 hours ago, from Texas said:

I was wondering if you had anything for the jurisdiction if the original creditor is listed as the plaintiff?

Jurisdiction is WHERE the case is being heard.  I believe you are mistaking it for standing to sue.  As the original creditor Cap1 very much has standing to sue.  You are confusing junk debt buyer defenses with an original creditor.  You cannot use them against Cap1.

2 hours ago, from Texas said:

Is there any way to prove the law firm bought the debt and is collecting for themselves?

If the law firm bought the debt they would be listed as the Plaintiff not Cap1 and the complaint would name them as the assignee.  There would also be a bill of sale for the account.

2 hours ago, from Texas said:

I was going to challenge jurisdiction based on the fact that there is no valid contract due to the deceptive methods used to coerce my then 18yr old son into contracting with them.

YOU cannot represent your son.  He is of legal age and has to do this himself.  If you attempt to represent him you are practicing law without a license.  You can expect that Cap1's attorney will object to your appearing on his behalf and the Judge will not allow it.

As for the contract:  the courts are acutely aware there is no written contract in a credit card case.  The only thing that matters is did he open the account, use the card, and fail to make the payments.  Cap1 will have ALL the evidence they need in their statements and they can attest to their own records.  They removed arbitration from their card agreements 7 years ago so that is not an option for your son.  

I don't know what deceptive methods you are alleging but the burden of proof is on your son that they violated the Truth in Lending Act.  

I suggest you consider consulting a good consumer attorney Jerry Jarzombek is a great one.  Most will do a first consult for free.

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Texas Rules of Civil Procedure 500.4 (c) Assisted Representation says that the court may, for good cause, allow an individual representing himself or herself to be assisted in court by a family member or other individual who is not being compensated.

I don't propose any deceptive methods, it seems that the credit card issuers use deceptive marketing methods to induce people to get their cards and don't fully reveal the nature or the details of the contract.

I saw this on this website:

SPECIAL EXCEPTION TO ACCOUNT STATED

1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves ata minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term:

“As used in the statutes of this state, in the act referred to, we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.”

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

“The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.”

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.

Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.

PRAYER

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled.
 

The law firm is claiming an account stated and implied contract. Would filing this do any good? What about the fact that we have not received an official notice f the trial date? Should we try to get a continuance? The trial is supposedly going to be a week from Tuesday, is this enough time for the lawyer you suggested to help? Any idea what his fee might be for this? We have currently have no money to speak of. 

Thank you for your help.

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10 minutes ago, from Texas said:

The law firm is claiming an account stated and implied contract. Would filing this do any good?

At best the law firm might dismiss the case and refile with implied contract and breach of contract.  Is this in Justice Court?

11 minutes ago, from Texas said:

Texas Rules of Civil Procedure 500.4 (c) Assisted Representation says that the court may, for good cause, allow an individual representing himself or herself to be assisted in court by a family member or other individual who is not being compensated.

There is a big difference between "assisting" and representing and so far based on what you have posted you are representing your son.  He will have to speak for himself the majority of the time.

12 minutes ago, from Texas said:

What about the fact that we have not received an official notice f the trial date? Should we try to get a continuance?

I would file for a continuance to consult legal counsel.  It should be granted.

12 minutes ago, from Texas said:

The trial is supposedly going to be a week from Tuesday, is this enough time for the lawyer you suggested to help?

Maybe.  Start CALLING (do not email) consumer law firms tomorrow.

13 minutes ago, from Texas said:

Any idea what his fee might be for this?

Probably several hundred dollars.  Depends on how much work is involved.

 

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What law firm is this?

How much is Cap1 claiming he owes?  (round it off do not put the exact amount)

What County?

When did he stop paying?

Consumer Attorneys  do not be afraid to consult one outside your local area.  Many will do a phone consult for free.

 

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36 minutes ago, from Texas said:

Moss Law Firm out of Lubbock

Apparently they are the "go to" firm for Cap1 in that area of Texas.  They are very aggressive as well.

37 minutes ago, from Texas said:

Stopped paying Oct, 2015 from what I can tell

Okay, so the suit is filed timely which means the statute of limitations defense is not an option.

I am not familiar with the court(s) in that area of Texas but you should be aware that many Justice Courts are "good ole boy" networks which are known to be creditor friendly.  Also, you have to get permission from the court to do discovery.  Last:  you said the filed a Motion for Summary Judgment.  Did your son file an opposition to that?  If not the court may automatically grant it.  

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According to the rules of procedure I saw they needed to file that at least 14 days before trial and that will be less than that if the trial is on the 22nd. Also I saw that they are supposed to give notice if they are going to use an affidavit and we got no notice of that either.

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I don't know how much of a good ole boy network it is, the Judge is a preacher at one of the local churches, we were hoping he would be fair. We were actually hoping if we put up any sort of opposition that they would leave us alone and go after some low hanging fruit elsewhere but that doesn't seem to be the case so far.

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9 hours ago, from Texas said:

What would he need to state in an opposition?

If he doesn't file a response to that MSJ then there may not even be a trial.  The court could simply grant it and be done.  A MSJ is filed when the filing party wants the court to simply rule in their favor stating there are no facts in dispute.  Do you agree with that?

9 hours ago, from Texas said:

According to the rules of procedure I saw they needed to file that at least 14 days before trial and that will be less than that if the trial is on the 22nd.

That date on the 22nd may not be the trial but the preliminary hearing.  It will also be when the MSJ is heard.

9 hours ago, from Texas said:

We were actually hoping if we put up any sort of opposition that they would leave us alone and go after some low hanging fruit elsewhere but that doesn't seem to be the case so far.

That works with junk debt buyers NOT original creditors.  Cap1 is VERY aggressive in pursuing these defaulted accounts to the point that they almost never sell them anymore. 

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Thank you again for your help.

I am not sure there are any facts to dispute other than the fact that they have not produced the original contract but evidently that doesn't matter anyway. 

The other issue which I am guessing would not matter is that all governments are now corporations and:

As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation than are expressly given by the incorporating act.” Bank of United States v. Planters' Bank of Georgia, 22 U.S. 9 Wheat. 904 904 (1824)

Also the fact that these banks are creating "money" out of thin air, which is colorable currency and therefore the contracts based on this currency would also be colorable. They are not lending money, they are lending credit, or renting a record of a promise to pay.

Additionally, "rather than lending us legal money, bankers have misled and deceived us into renting a record of a promise to pay legal money."

Because the ‘money’ that the bankers have purportedly ‘loaned’ to us—that we have loaned to them—is neither money in true legal substance, nor is it certain just whose ‘money’ it actually is, we can confidently assert that the bankers have

  • misrepresented the sign, true substance, and true value of the “consideration” component of the loan agreement,
  • engaged in misleading and deceptive conduct in the withholding and/or obfuscation of key information pertaining to their capacity to deliver on their promise of performance,
  • made false, misleading, and deceptive statements and representations in the inducement of borrowers to enter into an agreement of exchange of mutual performances (the “offer”),
  • failed to deliver on their promise of performance (“failure of consideration”),
  • engaged in misleading and deceptive conduct in obfuscating their failure to deliver on their promise of performance, and
  • gained dishonest advantage (“interest”, “yield”, “return”) through these acts of misleading and deceptive conduct.

These are excerpts from an article: http://beforeitsnews.com/economy/2016/05/dishonorable-debt-why-borrowers-are-not-legally-bound-to-repay-bank-loans-video-2823081.html?currentSplittedPage=0

I am not sure these arguments would hold water, unless we were able to convince a jury of their merit. But I would have been the one to have made these arguments, and from what you say the judge wouldn't allow me to do this and I am not sure my son would be able to.

I guess we are just screwed at this point. I gave the number of the lawyer you suggested to my son and told him to call him. Not sure if it will help.

Thank you again for your time in discussing this with me. 

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2 hours ago, from Texas said:

Additionally, "rather than lending us legal money, bankers have misled and deceived us into renting a record of a promise to pay legal money."

Because the ‘money’ that the bankers have purportedly ‘loaned’ to us—that we have loaned to them—is neither money in true legal substance, nor is it certain just whose ‘money’ it actually is, we can confidently assert that the bankers have

  • misrepresented the sign, true substance, and true value of the “consideration” component of the loan agreement,
  • engaged in misleading and deceptive conduct in the withholding and/or obfuscation of key information pertaining to their capacity to deliver on their promise of performance,
  • made false, misleading, and deceptive statements and representations in the inducement of borrowers to enter into an agreement of exchange of mutual performances (the “offer”),
  • failed to deliver on their promise of performance (“failure of consideration”),
  • engaged in misleading and deceptive conduct in obfuscating their failure to deliver on their promise of performance, and
  • gained dishonest advantage (“interest”, “yield”, “return”) through these acts of misleading and deceptive conduct.

These are excerpts from an article: http://beforeitsnews.com/economy/2016/05/dishonorable-debt-why-borrowers-are-not-legally-bound-to-repay-bank-loans-video-2823081.html?currentSplittedPage=0

The creators and proponents of those types of videos and theories are doing nothing more than attempting to find ways to get out of repaying debts. 

The "money out of thin air" argument has been rejected by the courts in which defendants raised that "defense".    Based upon those claims, people should be able to borrow money and never have to pay it back.  Considering courts aren't buying it, it wouldn't surprise me if those same theorists eventually claim that our banks are controlled by shape-shifting aliens who have duped us into borrowing money by way of mind control.

Here's what one state court noted when that "defense" was raised.  Stevenson v. Bank of America (Kentucky Court of Appeals, 2011).

"These filings were based closely on the 'vapor money' and 'redemption movement' theories which have been roundly rejected by courts across the nation. The 'vapor money' (or 'no money lent') theory posits that Congress has never given banks the authority to extend credit and, thus, banks act beyond their charters when making loans. Proponents claim banks create money 'out of thin air,' through ledger entries and bookkeeping tricks, by 'depositing' a borrower's promissory note without the borrower's permission, listing the note as an 'asset' on the bank's ledger entries, and then lending a borrower back his own 'money.' Since banks do not have enough 'real money in their vaults' to cover the sums lent, loans are not backed by actual money — the only real money is gold or silver; paper money is worthless since it is created by an illegitimate Federal Reserve — making them invalid ab initio and creating no obligation for repayment."

Stevenson lost.

The people who came up with that theory sure didn't mind spending that non-existent money, did they?

Some of those theorists also refer to "securitization" which has also been rejected by the courts.

Can banks screw up and make mistakes?  Yes.   Can they be deceptive at times?  Yes.  However, it's our responsibility to pay attention to our credit card statements when receive them in order to determine whether or not the billing is correct and immediately dispute any charge that we believe is inaccurate.   After my own credit problems, I learned to carefully review every bill (including electric, cable, cell phone, etc) I receive. 

If you want the judge to take you seriously, don't use unproven and rejected theories.    All it does is waste his time which he will not appreciate. 

It's correct that the original "contract" in a credit card lawsuit need not be produced because proof of a contract can be shown by the actions of the parties.   If it can be shown that your son made charges to the account, a contract was created.

If it were me, and I believed proper civil procedure was not followed, I would raise the issue along with citing the rule that was allegedly not followed.    However, the possible failure to follow proper procedure would not necessarily result in the dismissal of the lawsuit. 

 

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Thank you for the information.

I suppose you right, but it does seem like these banks and credit card issuers lay traps and make their offers seem like really good deals, but in actual use they can quickly become a nightmare for the people who made agreements with them. Especially when unexpected things happen that limit the ability to pay. Paying back a debt is one thing but between the interest and the penalties these things quickly snowball out of control and many just don't know what to do once they find themselves in that position. Just the deceptive nature of they way they do business should be enough to void their contracts. But you are right in the fact that people should pay attention to the deals they make, but almost nobody does.

These banks are making huge profits from struggling people who often make mistakes or have unexpected problems, very often these are people who they probably shouldn't have given the cards to in the first place, but if the banks make mistakes they get massive bailouts to cover them, even if their decisions were based on greed, which they almost always are. But nobody is there to bail out the little guys.

I try not to deal with banks or credit card people at all, they are just loan sharks as far as I am concerned.

Thank you for your help and your insight about this situation. He called a lawyer and hopefully they will be able to help him, but that is another issue I have in that between the government and the corporations all these things are set up in a way that the average guy has no chance without hiring an attorney, these laws, contracts, courts etc., should not be so complicated that the average person couldn't deal with it themselves. Just my opinion.

Thanks again.

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So a friend of mine said that even at this late stage that we might still be able to call Capital One and make payment arrangements that would make this lawsuit go away. Do you think this is a possibility?

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46 minutes ago, from Texas said:

So a friend of mine said that even at this late stage that we might still be able to call Capital One and make payment arrangements that would make this lawsuit go away. Do you think this is a possibility?

That is in the best interest of all parties. They may do this as a "stipulated judgement," meaning failure to make payments will result in a judgement, without need to re-sue, but at least lawsuit goes away and you can get this cleaned up.

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Do not send the original answer you found here that I provided to another member.  This is meant only for those who have been sued by a JDB not an original creditor and will not do you any good whatsoever.

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Yes, I realize that now, thanks. My son is talking to a lawyer about it. I wanted to try to help him but I think it is best he let someone else help him.

Thanks again.

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I just came across this post while researching how to defend myself against debt claim suit ($771/ PRA).  I already filed  my answer in justice court (texas) and am preparing to file request for production. Here is what I have so far: produce credit application signed by defendant, produce executed contract setting forth the terms defendant is alleged to have agreed to, produce modifications to terms allegedly agreed to by defendant, produce all statements from the beginning to present, produce detail regarding alleged charges by amount/type/date and produce evidence of payments received. Is there anything else I should request?  Second question, the process server duct taped summons on all 4 sides to my wood door. There was no way to remove the tape (3 inch tape  on all 4 sides) without causing damage.  I recvd an estimate of $140 to sand/refinish the damaged sections.  Would that be cause for a counterlclaim or cross claim?  Since the JDB contracted with this process serving company, arent they liable in addition to the process serving company ?  The process serving company has not respond to my request  for restitution. It's been a month since I initially reached out to them (and attorney representing PRA) including pics of the damage. Any help with these 2 questions would be greatly appreciated!!!!  No court date set.

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